CHAPTER II – WHAT IS LAW?
interpret law with pretensions at
A. What are the three uses of the word ‘law’
according to Dworkin?
 Law as a social institution
 Law as a particular type of rule or
prescription
 Law as the propositions of law
B. What is law as a social institution?
As a social institution, its goal is to create an
orderly world that allows man to be human, not
chaos. Man imposes order, and orders his
relations with others. Man through created laws
resolves conflict, tames (reduced from a state of
native wildness) the world and interacts with
others in supportive relations of love and
friendship. But there has to be order, law is an
institution of social order.
For example, the creation of the Constitution.
The constitution or the law of the people of a
state is the supreme law of the land. The police
power of the state cannot be exercised in
contravention of the inhibitions of the
constitution. The constitution, it being the
supreme law of the land, gives order to social
life and, in this measure, is an aspect of what
Berger calls nomization.
C. What is the process of nomization?
 Externalization (Man projects his
concept of order into the world and
structures it accordingly, i.e. the
Founding Fathers of the United States
decided that the order they wanted for
their democratic federation would
involve a tripartite governmental
framework)
 Objectification (The order projected
becomes part of either the personal,
social or physical worlds, i.e. the three
branches of government, though
mutually cooperating, are distinct, each
with their function; the judiciary cannot
and should not write statutes, and
neither should the legislature attempt to
definitiveness)
 Internalization (the objective scheme of
things structures my thinking about
things, and the thinking of society, i.e.
the moment members of society keep
the institution EXTERNAL to them, it
will not survive)
D. What is law as a particular type of rule or
prescription?
There are norms that dictate us what to do and
while violation of these norms can be very
embarrassing, the coercive force of state will not
be called upon to vindicate parties aggrieved,
nor will the courts be invoked to enforce rights.
While norms may play a considerable role in
shaping law, they do not, of themselves,
constitute law.
For example, the prescriptions of one’s parents
are very real prescriptions, accompanied with
some form of sanction for their violation, but
these are not laws in the sense we now use of
them.
E. How to identify the type of norm that can
be considered law?
An attempt to identify the type of norm that can
be considered law was Aquinas’
nihil est aliud quam rationis ordination ad bonum
commune ab eo qui curam habet communitatis
promulgata.
It means that the law is an ordinance of reason
ordered towards the common good, promulgated
by him who has charge of the community. It had
to be a REASONABLE ordinance, in short, a
norm that was in conformity with the dictates of
right reason for no one can ever be compelled to
do that which is unreasonable.
F. What is the three-fold typology proposed
by Arturo Tolentino?
In trying to identify that type of norm that law is,
Tolentino proposes a three-fold typology:
  Mandatory (which commands that
something must be done)
 Prohibitory (which commands that
something must not be done)
 Permissive (which commands that what
it permits should be tolerated)
This typology rests on what, for Arturo
Tolentino, are the essential features of law as
norm:
 Rule of human conduct;
 Promulgated by competent authority;
 Obligatory;
 Of general observance
However, for Justice Paras, he draws the
characteristics of law as a type of norm:
 A reasonable rule of action;
 Due promulgation (noting that without
due promulgation, obedience can hardly
be expected);
 Promulgation by competent authority;
 A sanction imposed for disobedience
It does seem that Paras are INCLINED towards
the classical approach to law while Tolentino
attempts to strike a balance between the
positivist approach and the classical proposal.
G. What is law as proposition of law?
What makes a proposition of law is that it is
found in the organic laws, statutes,
administrative regulations or procedural rules of
the appropriate branches, instrumentalities or
agencies of government.
For example, to assert that the law guarantees to
the accused the right to counsel is to cite a
proposition of law, specifically a provision in
the Bill of Rights.
H. What are penumbral propositions?
Penumbral propositions are propositions that do
not yield to such a straight-forward examination
or confronted us with the question: “ When is a
proposition true?”, leading us to the four theories of
truth.
I. What are the four theories of truth?
 The Correspondence theory
(maintains that p is true if and only if p
is true – a correspondence between the
proposition and the way things are)
Example: The moon is full is only true if
and only if the moon is in fact full.
 The Coherence theory (holds that it is
the compatibility of a proposition with
other accepted propositions that allows
it to be counted as true)
Example: It is sunny today is true if I
can also accept as true that it is bright
outside, laundry women are hanging
clothes out to dry.
 The Pragmatic theory (was designed to
face the issue on how “ethical” or
“value” judgments could be said to be
true; such judgements are true if the
consequences to which they lead are
desirable or acceptable)
Example: Abortion is immoral. To judge
the truth of this proposition is to ask
ourselves whether we would like the
termination of human life at the stages
of its development when it is helpless.
 The Rational belief theory (maintains
that a statement is true when there is
justification for it)
Example: The local Filipino diviner who
correctly identifies the culprit in a
murder case by examining the
configuration of melted wax in a basin
of water cannot have uttered a true
proposition. She, at best, made a
felicitous guess.
J. What is Hart’s version of Legal Positivism?
Essential to Hart’s theory is a system of
“primary” and “secondary” rules.
Primary rules repress activities that make it
impossible for persons to live in proximity.
Primary rules lay down what may be done
and what may not be done, and for many, law
is a set of primary rules. The only trouble is
that when one has nothing more than primary
rules, some nasty problems do arise:
 How does one distinguish between a
rule and a non-rule?
Answer: It is clear that that to deal with
these problems, there must be a rule of
recognition. Such for example is the
rule of Philippine political law that bills
passed by both houses of congress and
signed by the President are law.
 How does one change the rules?
Answer: There is need for rule of
change which, in the ultimate analysis,
is a rule of recognition, for such a rule
sets forth the process for a change of
primary rules. Rules on repeal, rules on
the effect of custom, or the extent of
equity’s applicability – all are rules of
change.
 How does one settle disputes arising out
of the application of primary rules?
Answer: There is need for a rule of
adjudication. It confers authority on
individuals to make authoritative
determinations on the question of
whether or not a primary rule has been
violated. It determines who is to
adjudicate, and the procedure of
adjudication.
Secondary rules, on the other hand, are meta-
rules, rules on rules, and in a sense are more
basic than the primary rules, because they
prescribe how primary rules are generated
and recognized.
Note: Rule of recognition is when one can with
good reason talk of the rule of recognition as
law, although it is in fact the criterion by which
law is recognized and when one can also
reasonably speak of the rule of the recognition
as a fact. But it is the courts that will point out
the rule of recognition.
For example, in the case of Farinas v. Executive
Secretary, the Court reiterated the doctrine of
the enrolled bill and to rule on its applicability
in resolving the dispute.
K. Why must there be a separation of law and
morals?
Hart argues that there will be reference to what
is “desirable” to what “does justice”,
“humanizing” or even outright “moral.”
Whether there is a law or not cannot be settled
by invoking the moral convictions of a people.
This is not to say that in the formulation of law
or in the decision between various possible
interpretations of law, morals has no place at all.
It is just to underscore the fact that the existence
of law cannot be a matter left to the debate
between different schools of morality.
For example, the draconian laws under the
Soviet Union, many were consigned or delivered
to the Gulag Archipelago on the basis of penal
laws that would not pass the tests of most
theories of morality. The world would have been
justified in castigating what was then the Soviet
Union for its immoral laws. BUT the fact that
many measures were immoral does not prove
that there was no law at that time. The law is the
law.
L. What is Habermas’ theory on rationality
and law?
Habermas has the confidence in the ability of
people to make claims, to challenge and to
justify them. He boldly announces that even in
such domains as judgments about beauty and
rightness, areas into which it seems most
respectable no longer to tread, it is permissible
not only to judge but to criticize judgments and
to support them with suitable arguments.
In other words, Habermas challenged social
science by suggesting that human beings are
capable of rationality and are able to
communicate with one another successfully.
He considered his major achievement to be the
development of the concept and theory of
communicative reason or communicative
rationality.
It is not only the truth-value of utterances that is
of philosophical interest; UTTERANCES have
also “performative functions.”
 Locutionary acts (performing the
utterance)
 Illocutionary act (pragmatic
illocutionary force of the utterance, i.e.
promising, swearing, etc)
 Perlocutionary act (the actual effect of
the utterance)
M. What is Normative Rightness as a Validity
Claim?
Habermas is interested in the
ILLOCUTIONARY aspects of our speech acts:
we raise (implicitly or explicitly) validity claims
whenever we engage in rational dialogue.
 Truth or accuracy (is this true?)
 Sincerity, truthfulness, authenticity (do
you mean what you say?)
 Legitimacy, normative rightness (is this
right? Is this justified?)
N. What is Normativity and the world of
norms?
The three worlds are:
 The world of physical objects or states
 The world of states of consciousness or
mental states
 The world of objective contents of
thought such as scientific thought and
works of art
Habermas broadens the comprehension of
Popper’s third world which then becomes the
world of social relations and institutions. The
result is that the social becomes an intermediate
world between the physical and the mental.
Accordingly, to view the world only as a set of
objectives and facts about which propositions
can be truthfully or falsely made is to miss much
of it. More dangerous it is to REDUCE
RATIONALITY to the support of propositions
and to ignore that it goes into the establishing of
social relations as well.
O. Legitimacy of Norms: Universalization
and Discourse
Habermas conception of law in relation to
morality:
 Modern legal orders are a coeval
complement of autonomous morality no
longer fits with the platonistic notion
that law and morality are related by a
kind of imitation – as if the same
geometric figure were simply projected
on a different level or presentation.
Hence we must not take basic rights
(constitutional norms) as mere imitations of
moral rights and we must not take political
autonomy as a mere copy of moral autonomy.
Rather, norms of action branch into moral and
legal rules, justified by the discourse principle. It
remains the principle of norm-formation though,
that for it to be valid – where justification by
recourse to a higher order such as natural law or
to the architectonic mind of the Creator is
foreclosed – it could meet with the approval of
all possibly affected persons.
Habermas terminologies
 “Valid” makes no reference to either
legal or moral order. It is “valid” in a
normative sense, which is another way
of saying that it has a normative force
 “Those affected” includes “anyone
whose interests are touched by the
foreseeable consequences of general
practice regulated by the norms at
issue.”
 “Ration discourse” refers to any attempt
to reach an understanding over
problematic validity claims insofar as
this takes place under conditions of
communication in public space.
Habermas principle of democracy as an the agreement of all those possibly affected. It
established procedure in legitimate lawmaking – can be understood then that human rights are
only those statutes may claim legitimacy that therefore the formal conditions for the legal
can meet with the assent of all citizens in the institutionalization of the discursive process of
discursive process is the source of legitimacy of opinion and will formation in which sovereignty
law. Basic therefore should be the right of every assumes a binding character.
citizen to participate as an equal of all else in a
Limit to law’s domain: confines itself to the
dialogue between and discourse among co-
external relation of interactive influences that
equals.
social actors exert to one another. It abstracts
Belief in legality is derived from belief in from motivation. Discourse has for its subject or
legitimacy that can be justified. topic the norms that will bind behavior, and not
the ends for which actors act, as these are shaped
P. The Rule and Role of Law
by personal convictions of the good life, human
Law is at the very heart of social integration; it fulfillment, etc.
stabilizes behavioral expectations. Civic
autonomy is oriented towards the common good.
Democratic self-legislation corresponds to what
for personal life is the moral autonomy involved
in self-legislation.
Habermas insist that there must be a link
between law and ethics. Law must harmonize
with moral principles of justice and solidarity.
Resistance to law and willful disobedience, open
defiance, rebellion, even are merely some
manifestations and expressions of the cognitive
dissonance that results when there is no such
harmony.
Impersonal rule of law based on supposedly
innate human rights versus the spontaneous self-
organization of a community resting on the
sovereign will of the people – the emphasis of
one over the other results in the tyranny of the
majority or the problematic position that human
rights are real only insofar as they are
incorporated into law.

 This tension can be reconciled through

mutual understanding. Bringing
“reason” and “will” together.
One doesn’t have to choose private autonomy
and political autonomy or vice-versa as they are
co-original. This is the ultimate criterion of the
legitimacy of law; subjects participating in
rational discourse, examine whether or not a
contested norm meets with or could meet with

PHILOSOPHY OF LAW – CHAPTER II
REVIEWER (PAGES 75-114)
LEGITIMACY AND LEGITIMATION:
THE PROBLEM THAT WAS EDSA II
1. How did Justice Reynato Puno expound the
rights in a democracy in the case of Estrada v.
Desierto and Estrada v. Macapagal-Arroyo?
Ans. Rights in a democracy are not decided by
the mob whose judgement is dictated by rage
and not by reason. Nor are rights necessarily
resolved by the power of number for in a
democracy, the dogmatism of the majority is not
and should never be the definition of the rule of
law.
Note: Without authority of law, shall be deemed
a “mob”.
2. What is rule of law?
Ans. A higher realm because it is controlling to
which must submit even the persuasion of the
multitude and the passion of the majority.
Note: The law ought to be obeyed because it is
the law.
3. How do laws enacted?
Ans. It is vested with a height, a magnitude that
gives its way and command over even its makers
and executors.
4. What is normative rationality and
normative action?
Ans. Permissibility, morality, validity, and
legitimacy are intelligible as the underlying
context of normative rationality and normative
action is action oriented by the sphere of norms
and of percepts.
Note: As a nation that engaged in normative
discourse, we tolerated the question of
legitimacy of the Macapagal- Arroyo
government.
5. The “law is technical”. Explain.
Ans. The law thrives by technicalities because
such technicalities little understood by the
uninitiated safeguard what society considers the
rational and fair means of resolving and settling
disputes. To mediate an ever-increasing gamut
of human affairs, it attains a level of complexity
that calls for the ministrations of specialists.
6. What is justifiability?
Ans. It indicates the law’s recognition of the
limits of its discourse.
7. What is the legal distinction of EDSA I and
EDSA II?
Ans. EDSA I involves the exercise of people
power of revolution which overthrew the whole
government. It is an extra constitutional, and the
legitimacy of the new government that resulted
from it cannot be the subject of judicial review.
On the other hand, EDSA II is an exercise of
people power of freedom of speech of
assembly to petition the government for redress
of grievances which only affected the office of
the President. It is intra constitutional and the
resignation of the sitting President that it caused,
and the succession of the Vice President as
President are subject to judicial review.
Note: EDSA I presented a political question;
EDSA II involves legal questions.
Note: Intra-constitutionality is a legal-speak
when legitimacy is challenged, one appeals to
norms that are commonly accepted. Any
discussion of legitimacy prospers within a
framework of established and accepted norms.
Extra-constitutional - beyond the provisions of
a constitution
8. What significance does the Court bears?
Ans. The Court is the institution that results
from as well as confirms the law in its
remoteness, in its heights, and thus in its
universality.
9. Expound the Toulmin’s Model.
Ans. Toulmin’s model schematizes the concept
of rationality. One makes a claim, able to
support with grounds by virtue of warrant, in
fact ground the claim.
Note: Rationality of the claim does not depend
on its factual acceptance by all but by the
availability of grounds and warrant that can be
accepted by one’s interlocutors.
10. What is meant by Constitution in the
concurring opinion of Justice Jose C. Vitug?
Ans. Constitution should be deemed to be a
living testament and memorial of the sovereign
will of the people from who all government
authority emanates. Nourished by it, it grows
and copes with the changing mileu.
D. A SCHOLASTIC TREATMENT OF THE
NATURE OF LAW
11. What is the purpose of law in Aquina’s
view?
Ans. To regulate behavior, to prescribe what
must be done, and to determine that regarding
which man must forbear.
Note: Aquinas argues that law must be
reasonable for it is reason that in fact direct a
person’s acts.
Ordo rationis – an order of reason.
12. What is “ex post facto laws”?
Ans. Laws that penalize acts which, at the time
of their commission, were not crimes.
Note: A number of international conventions
and treaties lay down an international injunction
against ex post facto laws. This means that he
whose rights are violated by the enforcement of
ex post facto laws can seek the protection of the
mantle of international law.
Article 11, paragraph 2 of Universal
Declaration of Human Rights provides:
No one shall be held guilty of any penal
offence on account of any act or omission which
did not constitute a penal offence, under national
or international law, at the time when it was
committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the
time the penal offence was committed.
13. Other requirements that law should meet.
 Law is an order of reason
 Law shall be promulgated
 One who has authority over the
community
 For the common good
Ad impossibilem nemu tenetur –
impossibility owes to the impossibility of
the performing or forbearing absent
knowledge of what must be done or avoided.
14. What is presumption of “knowledge of
the law”?
Ans. Everyone is conclusively presumed to
know the law. It is established because of
the obligatory force of the law. Once the law
has been promulgated and has taken effect,
it is the duty of everyone to know it.
15. What is “telos” of law?
Ans. Law must serve the common good, and
only the people themselves or their vice-
regent can determine with definiteness what
pertains to their common good.
Note: Private individuals cannot promulgate
law because they lack what he takes to be a
concomitant pf law – its coercive power.
16. What are the ways in making the
framework of political law?
Ans. (1) exercise of the right of suffrage (2)
lobbying – duty to listen to public opinion
(3) challenge of constitutionality
JOHN FINNIS ON NATURAL LAW
17. State the principle of practical reason.
Ans. First principles of practical reason that
lay down the basic forms of good and evil
are self-evident, grasped by anyone who has
reached the age of reason.
Note: Feelings of certitude do not validate
proposition.
18. Basic values of self-evident principles
shaping practical reasoning.
Ans.
(1) Life
(2) Knowledge
(3) Play
(4) Aesthetic Experiences
(5) Sociability
(6) Practical reasonableness
(7) Religion
Note: Each of those values is equally
fundamental, and there is no hierarchy
between.
19. Elements that constitute the notion of
justice.
Ans.
(1) Other directedness. Justice does not
regulate every relation between persons
but concerns itself with avoiding wrong.
(2) Equality. Proportionality or equilibrium.
Note: The well-being of an individual
requires an ensemble of conditions which
enhance the well-being of all members of
the community. This is the common good.
20. What are the problems relative to the
common good?
Ans.
(1) Distributive Justice. (e.g., disturbing
resources, opportunities, profits and
advantages, roles, offices,
responsibilities, taxes and burdens)
(2) Commutative Justice. When one
individual deal or transacts with another
individual, or when groups deal with
each other, and where the common stock
is not in issue.
21. Expound the principle of subsidiarity.
Ans. Where individuals by their own private
initiative can help themselves, they should
be allowed to do so. It is an aspect of justice.
22. Criteria of just distribution.
Ans.
(1) Need (justice is a fundamental
component of the common good)
(2) Function (need relative roles and
responsibilities in the community)
(3) Capacity (relative to the opportunities
for individual advancement)
(4) Deserts and contributions (friendliness
expressed by the manifested gratitude)
(5) Whether or not some parties have
created
AN ANALYSIS OF THE ACT RENDERING
JUDGEMENT:
23. State the analysis of the act rendering
judgement.
Ans. When A and B litigate before a judge the
enforceability of a contract, the subject-matter is
one of the commutative justice, but the act of
rendering judgement is always an act of
distributive justice for it allocates the coercive
powers of the state between the parties.
24. Enumerate the absolute rights.
Ans.
(1) Right not to have one’s taken directly
(2) Right not to be positively lied
(3) Right not to be condemned on
knowingly false charges
(4) Right to be deprived of one’s
procreative capacity
(5) Right to be taken respectful
consideration
CHARACTERISTICS OF THE LEGAL
ORDER:
25. What are the characteristics of the legal
order?
(1) Law brings definition, specificity, clarity,
and predictability into human interactions by
way of a system of rules
(2) The primary manner of establishing that a
rule is valid is to show that there was a duly
authorized institution
(3) Rules of law
(4) Law treats a past act as giving now sufficient
and exclusionary reason for acting in a way then
provided for
(5) Law is characterized by the working
postulate
26. What is meant by Rule of Law?
Ans. This refers to situation in which the legal
system is fully operative.
Note: Desiderata of Rule of Law
When:
a) Rules are prospective
b) They can comply
c) They are promulgated
d) They are clear
e) They are coherent with one another
f) Sufficiently stable
g) Rules is itself guided by rules
h) People having authority to make,
administer, and apply rule
NATURAL LAW AND THE PHILIPPINE
SUPREME COURT: MR. JUSTICE
REYNATO S. PUNO ON HUMAN RIGHTS
27. Expound human rights and natural law in
Justice Reynato Puno’s separate opinion.
Ans. He referred to human rights as “rights and
freedoms so fundamental as to be inherent and
natural” and, as such, demanded by the integrity
of the person and the equality of persons before
the law.
DWORKIN ON THE MODEL OF RULES
28. Expound the principles and policies.
Ans. Principles and policies are not “extra-legal”
considerations. They rather pertain to the very
heart of the administration of law.
29. What is the purpose of Certiorari?
Ans. Office of Certiorari is to check on abuses
in the exercise of jurisdiction. It is to bring
before the court for inspection the record of the
proceedings.
Note: Discretion is the act or the liberty to
decide according to the principles of justice and
one’s idea of what is right and proper under the
circumstances without willfulness or favor.
30. Distinction of Rules and Principles.
Ans. Rule binds in all-or-nothing- way and may
be valid or invalid, no middle ground being
possible whereas principles influence a decision,
but not determine it and have the dimension of
weight and importance that rules do not have.
Note: An appeal in equity was an appeal to the
king to do justice, a regal prerogative and duty.
Whoever invokes equity invokes the conscience
of the court. Equity triumphed over law. The
principles of equity are applied to do justice.

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